Chang v Legal Profession Complaints Committee
[2021] WASCA 86
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHANG -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASCA 86
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 12 MAY 2021
DELIVERED : 12 MAY 2021
PUBLISHED : 14 MAY 2021
FILE NO/S: CACV 79 of 2020
BETWEEN: CHRISTINA MARIE CHANG
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE D R PARRY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS S GILLETT, SENIOR SESSIONAL MEMBER
Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2019] WASAT 67
File Number : VR 51 of 2018
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE D R PARRY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS S GILLETT, SENIOR SESSIONAL MEMBER
Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2019] WASAT 67 (S)
File Number : VR 51 of 2018
Catchwords:
Appeals - Practice and procedure - Where appeal dismissed by operation of a springing order when the appellant failed to file an appellant's case which complied with the Rules within the time required by the springing order - Where appellant applied for an extension of time in which to comply with the springing order - Where the minute of appellant's case which the appellant proposed to file if an extension was granted also did not comply with the Rules and failed to disclose any reasonably arguable grounds of appeal - Whether it was in the interests of justice to grant an extension of time to file an appellant's case
Legal practitioners - Disciplinary proceedings - Whether Tribunal erred in finding that practitioner engaged in professional misconduct by knowingly making false and misleading statements with the intention of misleading a client and a court
Legislation:
Legal Profession Act 2008 (WA), s 403, s 438(2)(a)
Result:
Application for an extension of time to comply with a springing order dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | P D Yovich SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
Avsar v Westland Healthcare Ltd [2012] WASCA 125
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
in de Braekt v Legal Profession Complaints Committee [2016] WASCA 220
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Jones v Dunkel (1959) 101 CLR 298
Napier v The State of Western Australia [2008] WASCA 106
Neil v Legal Profession Complaints Committee [2017] WASCA 109
Neil v Nott (1994) 68 ALJR 509
Ponnambalam v The State of Western Australia [2015] WASCA 185
Santos v The State of Western Australia [2016] WASCA 107
Sims v Suda Ltd [No 2] [2015] WASCA 105
WKS v The State of Western Australia [No 3] [2020] WASCA 141
REASONS OF THE COURT:
At the conclusion of the hearing of the appellant's application for an extension of time to comply with a springing order, we dismissed the application and ordered that the appellant pay the respondent's costs of the application. We gave brief oral reasons for that decision, and said that we would publish our full written reasons for dismissing the application at a later date. These are our reasons for dismissing the application.
Summary
On 9 September 2019, the State Administrative Tribunal found that the appellant had engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) (LP Act).[1] On 15 May 2020, the Tribunal ordered that a report of its findings be transmitted to the Supreme Court (full bench) pursuant to s 438(2)(a) of the LP Act. It also ordered the appellant to pay the respondent's (Committee's) costs of the Tribunal proceedings, fixed in the amount of $20,761.35.[2]
[1] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (conduct decision).
[2] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) (penalty and costs decision).
The professional misconduct found by the Tribunal concerned the appellant:
(1)making deliberately false and misleading statements to a client of the appellant in her capacity as a migration agent;
(2)making deliberately false and misleading statements to the Magistrates Court; and
(3)failing to respond to notification letters and summonses issued by the Committee.
The appellant appealed to this court against the Tribunal's findings that she had engaged in professional misconduct, and also against the Tribunal's penalty and costs orders. Both appeals were dismissed by the operation of a springing order when the appellant failed to file and serve, within the specified time, an appellant's case which complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
The appellant applied for an extension of time in which to comply with the springing order by filing and serving an appellant's case. We were not satisfied that it was in the interests of justice to grant the extension application at this time. Essentially that is because the minute of appellant's case which the appellant proposed to file (Minute) did not comply with the Rules, and did not appear to us to raise any reasonably arguable grounds of appeal. Further, in all the circumstances, we were not satisfied that the appellant would be able to file and serve a compliant appellant's case within a reasonable time if a further extension of time were to be granted.
Background facts
The Tribunal made the following findings.
The appellant was, at all relevant times, an Australian legal practitioner and a registered migration agent.[3]
[3] Conduct decision [48].
In about March 2015, the complainant engaged the appellant, in the appellant's capacity as a registered migration agent, to prepare and lodge a permanent residency visa application on behalf of the complainant, her husband and their children.[4] The complainant withdrew the visa application in about early May 2016, after being advised that it would be rejected.[5]
False and misleading email statements
[4] Conduct decision [51].
[5] Conduct decision [78].
By email sent on 8 June 2016, the complainant set out various complaints about the service she had received from the appellant as her migration agent, and describing loss which she had suffered. In the email, the complainant asked the appellant to pay her $10,000, being the appellant's fee and costs incurred by the complainant as a result of the appellant providing allegedly incorrect advice. The complainant's email advised the appellant that, if the appellant did not respond to the email, the complainant would be left with no choice but to take legal action.[6]
[6] Conduct decision [80].
By email sent to the complainant on 23 June 2016, the appellant relevantly responded that:[7]
I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail.
[7] Conduct decision [82].
By email to the appellant sent on 29 June 2016, the complainant asked that the appellant let her know by 4 July 2016 if she was going to pay the complainant the $10,000. The complainant indicated that, if she did not hear from the appellant, she would proceed with lodging paperwork with the Magistrates Court.[8] The appellant responded six minutes later, indicating:[9]
Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly. It is nothing personal cheers[.]
[8] Conduct decision [83].
[9] Conduct decision [84].
As the complainant did not receive any further correspondence from the appellant, on 7 July 2016 she sent an email to the appellant requesting her '[p]lease let me know asap what is your intention regarding my request'. Two minutes later, the appellant responded by email to the complainant, indicating:[10]
Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent. Regards[.]
[10] Conduct decision [85].
In truth, at no time between 23 June 2016 and 7 July 2016 did the appellant notify, or correspond with, any insurer or insurers regarding the claim.[11]
[11] Conduct decision [119].
Read collectively, the email statements quoted at [10] - [12] above were false and misleading. This was because, together and in combination, they created a false and misleading impression that the appellant had contacted an insurer and the insurer had told her that she may not discuss the claim with the complainant directly. This was false and misleading, because the appellant had not contacted her professional indemnity insurer during the relevant period, or subsequently.[12]
[12] Conduct decision [125].
The appellant knew that the email statements quoted at [10] - [12] above were false and misleading. The appellant intended that the complainant be misled by the email statements, so as to defer or delay her from commencing proceedings against the appellant in respect to the claim.[13]
False and misleading statements at pre-trial conferences
[13] Conduct decision [129].
On 25 July 2016, the complainant commenced minor case proceedings in the Magistrates Court claiming $10,000.[14] On the same day the Magistrates Court issued a notice requiring the complainant and appellant to attend a pre-trial conference.[15]
[14] Conduct decision [86].
[15] Conduct decision [87].
The parties attended a pre-trial conference before a registrar on 23 August 2016. During the pre-trial conference, the appellant said to the registrar words to the effect:[16]
I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.]
[16] Conduct decision [88].
The appellant then requested an adjournment of the pre-trial conference. The registrar indicated that she would adjourn the pre-trial conference to allow the appellant time to talk to the insurer or for the insurer to send their lawyer to the next pre-trial conference. The registrar also indicated there would be no further adjournments of the pre-trial conference. The registrar then adjourned the pre-trial conference to 27 September 2016.[17]
[17] Conduct decision [89].
The appellant arrived late to the pre-trial conference on 27 September 2016 and requested a further adjournment after saying words to the effect:[18]
I cannot speak about the matter because there is an insurer involved[.]
[18] Conduct decision [90].
The pre-trial conference was adjourned to 22 November 2016. When the appellant did not attend that pre-trial conference, judgment for $10,000 plus court fees was entered for the complainant.[19]
[19] Conduct decision [94].
At no time prior to 27 September 2016 did the appellant notify, or correspond with, any insurer or insurers regarding the claim in the complainant's letter of demand or the Magistrates Court proceedings.[20]
[20] Conduct decision [160].
The clear inference from the statements quoted at [17] and [19] above is that the appellant had contacted her insurer and was awaiting advice from her insurer.[21] The statements were false and misleading.[22]
[21] Conduct decision [162].
[22] Conduct decision [164].
The appellant knew that the statements quoted at [17] and [19] above were false and misleading and intended that the Magistrates Court and the complainant be misled by the statements, so as to defer or delay the Magistrates Court proceedings. She lied to the Magistrates Court and to the complainant at the first two pre-trial conferences in order to defer and delay the proceedings.[23]
Failure to respond to notification letters and summonses
[23] Conduct decision [165].
On 20 January 2017, the complainant made a complaint about the appellant to the Committee. The Committee issued various notification letters and summonses to the appellant, to which the appellant did not respond.[24]
[24] Conduct decision [97] - [105], [177] - [178].
The appellant did not have any reasonable excuse for failing to respond to the notification letters and summonses.[25]
[25] Conduct decision [186].
The Tribunal's conduct decision
The Tribunal found that the appellant engaged in professional misconduct by:
(1)Preparing and sending the emails referred to at [10] - [12] above in circumstances where the statements quoted at [10] - [12] above were false and misleading, the appellant knew that the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay the complainant commencing proceedings against the appellant in respect of the claim.[26]
(2)Making the statements quoted at [17] and [19] above in circumstances where the statements were false and misleading, the appellant knew the statements were false and misleading and intended that the Magistrates Court and the complainant be misled by the statements, so as to defer or delay the proceedings.[27]
(3)Without reasonable excuse, failing to respond to the notification letters and summonses.[28]
[26] Conduct decision [146], [207](1).
[27] Conduct decision [172], [207](2).
[28] Conduct decision [200] - [204], [207](3).
The Tribunal's penalty and costs decision
After referring to the appellant's background,[29] disciplinary history (which the Tribunal did not consider to be an aggravating factor)[30] and character references,[31] the Tribunal turned to medical and psychological evidence. The appellant had filed reports from her general practitioner, psychiatrist and psychologist. The Tribunal found that the medical and psychological evidence did not indicate that the appellant's (now) diagnosed Post-Traumatic Stress Disorder (PTSD) or Depression/Anxiety caused, contributed to, or was in any way related to, the appellant knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the statements at the pre-trial conferences.[32] The Tribunal found that the sources or elements of 'stress' to which the appellant referred did not provide a satisfactory explanation for her serious professional misconduct.[33]
[29] Penalty and costs decision [31].
[30] Penalty and costs decision [32] - [34].
[31] Penalty and costs decision [35] - [46].
[32] Penalty and costs decision [47], [93].
[33] Penalty and costs decision [95].
The Tribunal found that knowingly seeking to mislead the complainant and the Magistrates Court was serious professional misconduct because it involved and displayed a lack of honesty and integrity. Further, the conduct did not involve an isolated instance of dishonesty, but rather comprised three instances and a course of dishonest conduct over a period of about four months.[34] Although the appellant's dishonest conduct occurred in her personal capacity, and not 'in the practice of law', she was in fact a legal practitioner, and practising as such, at the time. Her dishonest conduct was in response to a letter of demand foreshadowing legal proceedings against her and in the course of defending those proceedings. The practise of law routinely involves responding to letters of demand foreshadowing legal proceedings and defending legal proceedings.[35]
[34] Penalty and costs decision [88] - [89].
[35] Penalty and costs decision [94].
The Tribunal found that the appellant demonstrated no real remorse or insight into her wrongdoing in terms of the false and misleading statements.[36]
[36] Penalty and costs decision [97].
The Tribunal found that the appellant's professional misconduct by knowingly seeking to mislead the complainant and the Magistrates Court demonstrated that she was not a fit and proper person to remain a member of the legal profession. The Tribunal found that the appellant's character and conduct are inconsistent with the privileges of further practice, as she lacked the honesty and integrity which are essential to practise law. The Tribunal concluded that the appellant lacked the character and trustworthiness necessary to discharge the responsibilities of legal practise and that she was permanently or indefinitely unfit to practise.[37]
[37] Penalty and costs decision [117].
The Tribunal decided to make and transmit a report on the findings that the appellant was guilty of professional misconduct to the Supreme Court (full bench), with a recommendation that her name be removed from the roll of persons admitted to the legal profession under the LP Act.[38]
[38] Penalty and costs decision [142].
The Tribunal did not impose a separate penalty in relation to the appellant's professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses.[39]
[39] Penalty and costs decision [120].
The Tribunal determined, in the exercise of its discretion under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that it was fair and reasonable that the appellant should pay the Committee's costs of the Tribunal proceedings fixed in the sum of $20,761.35, being the disbursements incurred by the Committee ($23,591.10, being predominantly counsel's fees) less 25% of counsel's fee up to the point of the conduct hearing to take account of the fact that the Committee withdrew a ground of complaint originally alleged ($2,829.75).[40]
[40] Penalty and costs decision [140] - [141].
The appeals to this court
The appellant commenced an appeal against the penalty and costs decision of 15 May 2020 by an appeal notice filed on 3 June 2020 (CACV 61 of 2020). Also, on 3 July 2020, the appellant commenced an appeal out of time against the conduct decision of 9 September 2019 (CACV 79 of 2020). The appellant filed an amended appeal notice in CACV 61 of 2020 on 3 July 2020. The appellant's cases in each appeal were therefore due to be filed by 8 July 2020 (CACV 61 of 2020) and 7 August 2020 (CACV 79 of 2020). On 12 August 2020, the Court of Appeal office wrote to the appellant noting that court records indicated that the appellant's case was yet to be filed in either appeal.
On 20 August 2020, the acting Court of Appeal registrar made an order, by consent, extending the time for the appellant to file and serve her appellant's case in both appeals to 25 September 2020.
On 11 December 2020, when no appellant's cases had been filed, the court (Murphy and Vaughan JJA) ordered that the two appeals be consolidated, with CACV 79 of 2020 to be the lead appeal. The court also extended the time for the appellant to file and serve an appellant's case in the consolidated appeal to 4.00 pm on 22 January 2021. The court also ordered that, unless the appellant filed and served an appellant's case, the consolidated appeal is dismissed and the appellant is to pay the respondent's costs of the consolidated appeal, including any reserved costs, to be assessed.
Although the appellant attempted to file and serve an appellant's case in the consolidated appeal on 22 January 2021, the document was not accepted for filing as it did not comply with the Rules. The acting Court of Appeal registrar wrote to the appellant on 28 January 2021 informing the appellant why the document did not comply with the Rules and attaching a certificate of conclusion of the appeal. The registrar informed the appellant that, if she wanted to pursue the consolidated appeal, she would need to apply for an extension of time for compliance with the springing order made on 11 December 2020.
By application in an appeal filed on 18 February 2021, and dated 15 February 2021, the appellant applied for an extension of time to file an appellant's case in the consolidated appeals. The court made directions programming that extension application for hearing, including requiring the appellant to file and serve a minute of the appellant's case she seeks leave to file if an extension of time was granted. The appellant filed the Minute on 26 March 2021.
General principles
The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2],[41] in the following terms:
[41] A v C [No 2] [2015] WASCA 199 [2] - [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]
(citations omitted)
Disposition
In concluding that it was not in the interests of justice to grant an extension of time to comply with the springing order, we had regard to the following matters.
Delay and prejudice
The springing order of 11 December 2020 was made after extensive delay by the appellant in filing an appellant's case. At that time, over 5 months had passed since the commencement of the appeals without an appellant's case which complied with the Rules being filed. The springing order gave the appellant a further 6 weeks to file and serve an appellant's case.
The appellant did attempt to file an appellant's case within the time required by the springing order. However, it was not accepted for filing because it did not comply with the Rules. That the appellant did not simply ignore the springing order and did attempt to file an appellant's case (albeit a non-compliant one) is a factor which counts in favour of the grant of an extension of time.
Further, also supporting the appellant's extension application, there will be significant prejudice to the appellant if an extension of time is not granted. Contrary to the suggestion in the appellant's written submissions,[42] it is likely that she could not simply begin a new appeal against the conduct decision and/or penalty and costs decision if an extension of time was refused.
[42] Par 41 of the appellant's written submissions filed on 26 March 2021.
Provisions giving a right of appeal to this court in indictable criminal cases have been construed as conferring a right to institute a single appeal against an appellable decision.[43] Similar considerations are likely to apply to rights of appeal provided for in civil cases. In Avsar v Westland Healthcare Ltd,[44] this court applied the approach taken in the criminal cases to s 79 of the District Court of Western Australia Act 1969 (WA). The court held that s 79 does not confer a right to a second appeal after the first appeal has been heard and determined on the merits and the orders have been perfected. In WKS v The State of Western Australia [No 3],[45] the court observed that, commonly, provisions conferring statutory rights of appeal are construed as authorising only a single appeal so that an appellant is not entitled to commence multiple appeals from the same decision.
[43] Ponnambalam v The State of Western Australia [2015] WASCA 185 [30]; Santos v The State of Western Australia [2016] WASCA 107 [10]; Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543 [11] - [13]; [23] - [24].
[44] Avsar v Westland Healthcare Ltd [2012] WASCA 125 [16].
[45] WKS v The State of Western Australia [No 3] [2020] WASCA 141 [8].
It is likely that the right of a party, subject to the grant of leave, to 'appeal from a decision of the Tribunal' under s 105 of the SAT Act is spent once an appeal is instituted against a decision, so that a second appeal against the same decision would be incompetent. On that view, the appellant would have exhausted her right to appeal against the conduct decision, and the penalty and costs decision, by commencing the current appeals. Her opportunity to set aside the Tribunal's decisions would depend on the grant of an extension of time to comply with the springing order.
However, the point has not been fully argued, and the question of whether s 105 allows multiple appeals from a single Tribunal decision has not been determined by any authority cited to us. We dealt with the current extension application on the assumption, favourable to the appellant, that the appellant could not institute a second appeal against the conduct decision, or the penalty and costs decision.
It is also relevant to note that the impugned orders have a serious effect on the appellant, and may lead to an order being made by the Full Bench of the Supreme Court striking the appellant off the roll of practitioners. The impugned orders have the capacity to deprive the appellant of the capacity to practise her profession as a legal practitioner.
There is no particular prejudice to the Committee if an extension were to be granted. While the Committee does not have any vested interest in the 'fruits' of the decision subject to appeal, as that term is often used in an appellate context, it is a regulatory authority with limited resources and relevant prejudice can arise from a wastage of those resources.[46] However, it is not apparent in the present case that an extension of time which allowed the appellant to file a properly formulated appellant's case would cause any significant wastage of the Committee's resources. Further, as the appellant does not currently hold a practising certificate, a delay in the determination of the appeal does not prejudice the public interest in the protection of consumers of the services of the legal profession and the public generally.[47]
The Minute does not comply with the Rules
[46] in de Braekt v Legal Profession Complaints Committee [2016] WASCA 220 [54].
[47] See Neil v Legal Profession Complaints Committee [2017] WASCA 109 [50].
Having regard to the above matters, we would have been inclined to grant the appellant an extension of time if the Minute filed by the appellant indicated that she was or would shortly be in a position to file an appellant's case which complied with the Rules and which contained grounds that had a reasonable prospect of succeeding. However, the Minute filed by the appellant does not meet those criteria.
The grounds of appeal in the Minute do not comply with r 32(4)(b) of the Rules, which requires a succinct statement of the grounds, and concise particulars of them. The Minute contains 18 grounds of appeal against the conduct decision and 27 grounds of appeal against the penalty and costs decision, running over 13 pages. Many of those grounds are discursive in nature. Some raise multiple issues. Other grounds contain bald assertions of error without any appropriate particularisation. Many of the grounds are repetitive.
The appellant's submissions in the Minute do not comply with r 32(5)(a) of the Rules, which requires the document to contain, for each ground of appeal, the appellant's written submissions clearly expressed so as to convey the substance of them clearly and as succinctly as possible. The written submissions do not identify the grounds which are being addressed, and some of the grounds of appeal are not addressed at all.
Senior counsel for the Committee attempted to distil from the Minute the points which he understood to be sought to be advanced by the Minute. The task, while not impossible, is difficult and time consuming, and it cannot be said with any confidence that all of the issues which are sought to be raised by the Minute have been identified. The point of the requirements in the Rules set out above is to oblige an appellant to identify clearly and with precision the issues requiring this court's determination. The Rules seek to avoid the waste of the resources of respondents and this court in having to sift through long rambling documents in a struggle to identify all of the issues and hunt for a potentially meritorious point. The Minute would not appropriately be accepted for filing if an extension of time were granted, as it patently fails to meet the above requirements.
The Minute does not advance reasonably arguable grounds
Further, our review of the Minute has not identified any ground raised by the Minute which has a reasonable prospect of succeeding. For the purpose of explaining why this is so, it is convenient to focus on the complaints relating to the misconduct findings arising out of the false and misleading statements made to the complainant and the Magistrates Court.
Relevance of the merits of the appeal on an extension application
Before dealing with the merits of the grounds, we note the appellant's submissions relying on the observations of Brennan CJ and McHugh J in Jackamarra v Krakouer.[48] In that case, which involved an application for an extension of time to enter an appeal for hearing, their Honours drew a distinction between an extension of time to bring an appeal and an extension of time for taking a procedural step in prosecuting the appeal. In the latter case, in their Honours' view, the merits of the appeal are not relevant unless the court is satisfied that the appeal is so devoid of merit that it would be futile to extend time.[49]
[48] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.
[49] Jackamarra [7].
A similar submission was advanced in in de Braekt, where this court noted that Jackamarra was decided prior to the introduction of the Rules, and did not concern an application for an extension of time where the appeal had already been dismissed.[50] The court observed:[51]
The extension of time sought by the appellant in this case arises within a procedural context in which pt 5 r 43(2)(f) and r 43(2)(g)(i) of the Court of Appeal Rules provide, in effect, respectively, that a ground of appeal may be struck out if it has no reasonable prospect of succeeding, and an appeal may be dismissed if none of the grounds of appeal has a reasonable prospect of succeeding. For a ground of appeal to have a reasonable prospect of succeeding in this context, it must have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding; in effect, that it has a real prospect of success. The purpose of these rules is to weed out unmeritorious appeals.
If, as is the case, a ground of appeal may be struck out or an appeal may be dismissed on the above bases whilst an appeal is on foot, it is (at least) open to consider whether the grounds of appeal have a reasonable prospect of succeeding in the sense described above, when an application is made for an extension of time after an appeal has been dismissed upon the execution of a springing order.
[50] in de Braekt [42], [46].
[51] in de Braekt [47] - [48].
We turn then to consider whether any of the grounds of appeal in the Minute have a reasonable prospect of succeeding.
Reasonable apprehension of bias
Various grounds assert a reasonable apprehension of bias by the members of the Tribunal. The lengthy particulars and the submissions advanced in support of that contention are confused and confusing, and largely relate to the conduct of members and officers of the Tribunal other than the members who made the conduct decision and the penalty and costs decision. The appellant does not advance any cogent argument as to why a fair-minded lay observer might reasonably apprehend that the members who made the conduct decision and penalty and costs decision might not bring an impartial mind to the resolution of the question the members were required to decide.[52]
[52] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8].
At the hearing of her application, the appellant sought to hand up an additional affidavit sworn 12 May 2021, which was said to be relevant to the allegation of reasonable apprehension of bias. We received the document provisionally and said that we would consider whether to accept the affidavit after hearing submissions. Having considered the affidavit we would not direct that it be accepted for filing. The affidavit was not filed in accordance with programming orders made for the hearing of the extension application, there was no adequate explanation for its late provision, and it was not necessary for this court to have the documents annexed to that affidavit for the purposes of dealing with the extension application.
Challenges to findings of primary fact
There is no merit to the grounds and submissions so far as they challenge the Tribunal's findings of primary fact as to what the appellant told the complainant, referred to at [10] - [12] and [17] - [19] above. The statements referred to at [10] - [12] were made in written communications which were before the Tribunal. The complainant gave evidence that the appellant made the statements referred to at [17] - [19], and her evidence in that respect was not contradicted by any other evidence. Neither party called the presiding registrar, who was a witness independent of both parties, although it would have been open to either party to have done so. Contrary to the suggestion in ground 11, no Jones v Dunkel inference could arise against either party from the absence of the registrar's evidence.[53] The absence of any evidence from the registrar, and the fact that the appellant chose not to give any evidence, did not prevent the Tribunal from accepting and acting on the evidence that was before it as to what the appellant said at the pre-trial conferences.
[53] Jones v Dunkel (1959) 101 CLR 298.
Ground 15 raises the question of whether statements made by the appellant in a pre-trial conference for a minor case in the Magistrates Court are admissible in disciplinary proceedings against her in the Tribunal. The ground and submissions in support of it do not advance any persuasive reasons why the Tribunal erred by, in effect, failing to hold that a legal practitioner who deliberately makes false and misleading statements in without prejudice negotiations (whether on behalf of himself or herself or a client) can be shielded from allegations of professional misconduct simply by asserting the existence of without prejudice privilege.
As best we can tell, the grounds and submissions do not appear to challenge the Tribunal's finding that the appellant did not in fact notify or communicate with any insurer in relation to the complainant's claim. In any event, the evidence before the Tribunal that the appellant's insurers had received no notification or communication, and the absence of any evidence to the contrary, properly allowed the Tribunal to draw the inference that the relevant statements were false and misleading.
For these reasons, we reject the appellant's challenge to the findings as to the content of her statements and any challenge to the findings as to the absence of notification of, or communication with, any insurer.
Inferences properly drawn from primary facts
We next consider the appellant's challenge to the finding that she knew the statements were false and misleading, and intended to mislead the complainant and the Magistrates Court for the purpose found by the Tribunal.
There was no direct evidence as to the appellant's knowledge or intention. However, the inference that the appellant knew the statements were false and misleading is properly drawn from the fact that the appellant made the statements about contacting her insurer, and what the insurer had told her, in circumstances where the appellant had not notified or communicated with any insurer in relation to the complainant's claim. The appellant would have known whether she had contacted or communicated with her insurer, and there was no evidence before the Tribunal suggesting that the appellant might have been mistaken about that fact.
Once it is found that the appellant lied to the complainant and Tribunal, the content of the appellant's statements and the context in which they were made properly support the inference that she lied with the intention of deceiving the complainant and the Magistrates Court so as to defer or delay the commencement or prosecution of the Magistrates Court proceedings.
We see no merit in the grounds or submissions so far as they challenge the drawing of the above inferences, which are the inferences we would draw from the primary facts found by the Tribunal.
Characterisation of the appellant's conduct as professional misconduct
The primary facts and inferences from those primary facts described above properly support the conclusion that the appellant had engaged in professional misconduct as defined in the LP Act. The Tribunal's finding was that the appellant lied to a client and a court on multiple occasions with the intention of deceiving both to achieve an outcome - the deferral of the commencement and prosecution of court proceedings against her - which was to the benefit of the appellant. Having reached that conclusion, it was at least open to the Tribunal to find that the appellant engaged in professional misconduct and that it was appropriate to exercise its discretion to make and transmit a report on the finding to the Supreme Court (full bench) under s 438(2)(b) of the LP Act. The Minute provides no persuasive arguments as to why the Tribunal erred in doing so.
Procedural fairness and the costs decision
The appellant submits that the Tribunal failed to accord her procedural fairness in making the penalty and costs decision, which it ultimately determined on the papers. The procedural steps taken by the Tribunal are set out in detail in its penalty and costs decision,[54] and in our view gave the appellant more than a reasonable opportunity to put material in support of her case before the Tribunal. The Minute advances no persuasive reason why the procedure adopted by the Tribunal was procedurally unfair.
Significance of the appellant's mental health issues
[54] Penalty and costs decision [3] - [26].
The appellant's grounds and submissions also assert that the Tribunal failed to take account of the appellant's mental health when reaching its penalty and costs decision. There is no merit to the submission that the Tribunal failed to have regard to that matter, which was expressly discussed at some length in the penalty and costs decision.[55] Further, there is no cogent challenge to the Tribunal's conclusion that the medical evidence before it did not indicate that the appellant's mental illness caused, contributed to or was in any way related to the professional misconduct relating to the misleading statements.
Costs
[55] Penalty and costs decision [47] - [68], [93].
Nor does the Minute provide any persuasive reason for this court to interfere with the exercise by the Tribunal of its discretion to award costs in favour of the Committee, in awarding the Committee part of the disbursements it had incurred in the Tribunal proceedings.
Other matters
Various other issues are sought to be raised by the Minute, but none appear to us to provide a proper basis for setting aside the conduct decision or the penalty and costs decision.
Conclusion
In the above circumstances, we were not satisfied that it was in the interests of justice to grant the appellant an extension of time to file an appellant's case in the form of the Minute. The Minute does not comply with the Rules, and did not appear to us to disclose any reasonably arguable case for setting aside the Tribunal's conduct decision or penalty and costs decision. If the appellant lodged the Minute, it would not be appropriate to accept the document for filing as her appellant's case. The history of the matter leaves us with no confidence that, if an extension of time were granted, the appellant would have the capacity, within any reasonable time, to prepare a compliant appellant's case which sets out reasonably arguable grounds of appeal. In all the circumstances, we considered it appropriate to refuse the application for an extension of time to file and serve an appellant's case.
In reaching this conclusion, we were conscious of the risk that misguided advocacy by a self-represented litigant, even one with legal qualifications, may direct the court's attention away from material considerations.[56] However, as this court noted in Sims v Suda Ltd [No 2]:[57]
The [Rules], by r 32(4), require that an appellant's case state the grounds of appeal relied upon by the appellant, and concise particulars of them, succinctly in numbered paragraphs. The importance of compliance with those requirements cannot be overstated. The provision of proper grounds of appeal is not only necessary to enable the other party to know the case it has to meet but is critical to the court's function on an appeal …
While it may be necessary to allow some leniency in compliance with the rules where an appellant is unrepresented, in the end the allowances that can be made are necessarily limited, both as a matter of fairness to the other party and because the provision of proper grounds of appeal is fundamental to the exercise of the appellate function by the court.
In Sims, the court recognised that the litigant's experience in representing himself in many court proceedings limited the degree of leniency which the court could accord him. In the present case, the degree of leniency which the court can properly give the appellant is limited by the fact that she is a legal practitioner with over 30 years' experience.
[56] Neil v Nott (1994) 68 ALJR 509, 511.
[57] Sims v Suda Ltd [No 2] [2015] WASCA 105 [19].
We were not satisfied that the prospect that there might be some hidden meritorious point which we have not properly appreciated justifies the grant of an extension of time in this case. However, this decision should not be taken to necessarily preclude the appellant from making a second application for an extension of time to comply with the springing order, based on a more focussed appellant's case which raises a reasonably arguable ground or grounds of appeal.[58] Such an application would be assessed on its own merits, having regard to the appellant's case which the appellant then proposed to file, the time which had then passed since the springing order was made, and any material change in circumstances (such as the appellant obtaining competent legal representation).
[58] See by analogy Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198, 205.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
14 MAY 2021
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